Concluding International Investment-Related Agreements with Non-EU Countries: Roles of the EU and Its Member States

Abstract

The 2009 Lisbon Treaty has added an important exclusive competence for the European Union (EU) in the common commercial policy area, namely, foreign direct investment, thus making it a crucial actor in international investment protection. This has a huge impact on shaping international investment policy in Europe and has raised important questions, especially regarding the legal consequences of the EU’s exclusive competence in the negotiation process of international investment agreements (IIAs) with third countries. This article explores the role of the EU and its member states in negotiating and concluding IIAs with third countries. In the first part, the article illustrates when individual member states are authorized to conclude a new bilateral investment treaty with a third country, with a focus on the EU´s Regulation No 1219/2012 and its implementation. In the second part, the article questions what it means for the EU and its member states to conclude investment mixed agreements with third countries, how the negotiation processes are conducted, and what is the impact of the division of competences between the EU and its member states. The final part of the article shows the current issues of ius standi and financial responsibility in investment dispute settlement involving foreign investors, with a focus on the EU´s Regulation No 912/2014 and the negotiation processes of the EU with third countries.